junio 21, 2012

In first place, we are to distinguish between “Fundamental Rights”, on the one hand, and “Human Rights” on the other one. It will also include a contrast between the reasons both in favor and against the idea of considering the access to the Internet as a “Fundamental Right”.

To this end, we start from the concepts developed by Luigi Ferrajoli[1], which conceptualizes that “Human Rights” are those granted to all, regardless of their citizenship and their capacity to act; and those inherent in the human condition. Usually provided for international instruments. While “the Fundamental or Constitutional Rights” as recognized by the State Constitution.

That is, the “Fundamental Rights” are those recognized in national constitutions of the respective States, human rights are positivized in a legal order in particular.

Having made a reference for both concepts, we focus now on “fundamental rights”, for which we find expressions in favor of considering Internet access as such. These include the Universal Declaration of Human Rights, although we find no explicit reference about this right, we must take into account the time of writing, 1948, when there was no Internet yet. However, in the Declaration are enshrined fundamental rights (freedom of thought, freedom of opinion and expression, right to education) that can serve as arguments in favor of recognizing the Internet access as a Fundamental Right.